Animal Welfare (Primate Licences) (England) Regulations 2023

Debate between Baroness McIntosh of Pickering and Lord Hope of Craighead

Tuesday 27th February 2024 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I want to take this opportunity to put a couple of questions to the Minister, as she was kind enough to invite us to do. I declare my interest that I am an associate of the British Veterinary Association. It did not issue a briefing, but I have looked at its website and it supports the original thrust of the consultation, which was for a ban. As recently as December last year, when it posted its position on its website, it was in favour of a ban. Why have the Government and the department moved away from a ban to licensing, as in the regulations today?

Is the Minister in a position to say exactly how many primates are kept as pets? The noble Lord, Lord Trees, referred to a figure of 5,000, but I do not know whether that is an authoritative figure or a guesstimate.

The thrust of the regulations looks very much at licensing becoming the responsibility of local authorities. I entirely endorse what the noble Lord, Lord Trees, said about the difficulty of identifying which professional would be best placed to make sure that the conditions in which the primate was to be kept were appropriate. The Minister will be as aware as I am of the severe constraints under which local authorities are operating at this time, so I wondered what the thinking was behind putting in place a licensing scheme rather than a ban—and it would be helpful to know the total number of primates that we are talking about.

Lastly, when I chaired the EFRA Committee in the other place, we took a lot of evidence on the import of illegal dogs, dog smuggling and boiler-room breeding of dogs. I wondered why we have before us a very worthy statutory instrument on animal welfare and keeping primates as pets, but we do not seem to have tackled those other issues, which are a source of great concern and anxiety to the British public, of illegal dog smuggling and boiler-room breeding, often in inappropriate sheds, in people’s homes.

[Lord Hope of Craighead (CB)]

My Lords, I want to follow the point made by the noble Lord, Lord Trees, about the possibility of exportation to Scotland when the licensing scheme is set up, as it will be, in England. It is quite a serious issue, as we have seen with XL bully dogs. I wonder whether the Minister’s department has been in touch with the authorities in Scotland to draw their attention to what is going on so that they are fully aware and can make their own assessment of the risk.

Some primates are kept as pets in Scotland, and I happen to have met two of them on separate occasions when they were being taken for walks. It is not as if it is an entirely English practice; there are certainly some instances north of the border, although I do not know how many there are. It is important that the two jurisdictions work together on this system without the disparity that is apparently coming because the regulations apply only to England.

Retained EU Law (Revocation and Reform) Bill

Debate between Baroness McIntosh of Pickering and Lord Hope of Craighead

Report stage
Wednesday 17th May 2023 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I am grateful for the kind words from the noble Baroness, Lady Brinton. I was not going to speak, but I would like to echo the remarks she made and repeat my concern, shared by other noble Lords, that there is not going to be sufficient time for a consultation on the directives relating to gluten, flooding and other issues. The Food Standards Agency agrees with all the directives in the proposed new schedule but is concerned that, by the time the Bill receives Royal Assent, there will be a perilously short period in which to conclude the required consultations.

I echo the concerns raised by the noble Baroness, Lady Hayman of Ullock, regarding the Flood Risk Regulations 2009, at page 10, line 197 of the proposed new schedule. I stand to be corrected by my noble friend the Minister, but it is my understanding that this is not a transposition of EU law but an entirely UK measure. I would like to know, for greater clarification and understanding, why these regulations are included in the proposed new schedule.

I echo also the concerns of the noble Baroness, Lady Bakewell of Hardington Mandeville. I think we all accept that in the 1980s, the UK was known as the dirty man, or woman, of Europe, and it took a female Prime Minister, Baroness Thatcher—then Margaret Thatcher—to take the plunge and implement all the EU directives and regulations. These have moved on, and since we have left the European Union the water framework directive and others—most recently, the urban wastewater directive—are going through a further transposition. Obviously, they will no longer apply to UK water companies. I realise it is a different department but I hope Defra, along with my noble friend, will look favourably on some of the requirements set out therein, which may actually benefit the UK’s environment: bathing waters, drinking water and especially wastewater.

I seek clarification from my noble friend of something he said, as I do not think he answered the concerns I expressed on Monday. He was very clear that we are dropping the interpretative effects of retained EU law, but I would like to press him in this regard because the indirect effect of EU law is also sometimes referred to as the “consistent interpretation” of EU law. I hope that a company in this country seeking to export or conduct its business in an EU country—selling insurance policies, for example—will not be disbarred from doing so because we are not interpreting the law in the same way as EU countries. I realise that my noble friend was very clear on this point, but can he ensure that there will be no discrimination in this regard against UK companies trying to do their business and trade in an EU country?

[Lord Hope of Craighead (CB)]

My Lords, the amendments moved by the noble Baronesses leave me feeling very uneasy—not because I doubt the validity of the points they have raised, but because I am concerned about things that may have been missed out. The fact is that we have been presented on Report with an enormously long proposed schedule and a spreadsheet and, frankly, this is no way for parliamentary scrutiny to be conducted in the Chamber. It is a different matter in Committee, where we can have things on tables in front of us, but it is quite impossible to go through the proposed schedule in this Chamber with the respect and detail that it deserves on Report. That is my concern.

I confess that I have not had the time or resources to go through the whole of the proposed new schedule. I have spotted, as has been noted, a number of things that quite obviously have to be discarded. That is not in doubt. However, it is the things that need to be examined carefully in detail in order to see mistakes of the kind that these amendments draw attention to that trouble me very greatly. I just express my great concern about the process we are undertaking, which, in my respectful submission, cannot really be described as parliamentary scrutiny.

Environment Bill

Debate between Baroness McIntosh of Pickering and Lord Hope of Craighead

Committee stage
Monday 28th June 2021 Lords Chamber

[Lord Hope of Craighead (CB) [V]]

My Lords, I hope I can be heard. Amendment 81A is a probing amendment, for reasons that I hope to explain. Clause 19 provides for the making of statements about Bills containing new environment law before the Bill’s Second Reading. According to paragraph 22 of the Explanatory Notes, these are to be statements setting out “the effect” of the new primary environmental law on existing levels of environmental protection provided for by environmental law, but the wording of the clause does not quite say that. All it requires is a statement by the Minister that the Bill contains a provision which, if enacted, would be environmental law and would not have the effect of reducing the level of protection provided for under existing environmental law, or that the Minister is unable to make that statement. There the matter lies. How great the reduction would be and in what respects, if he or she is unable to make the statement, is another matter, which the clause does not mention or require to be considered.

A requirement of the limited kind that this clause describes seems to be breaking new ground, although something similar is to be found in Section 19 of the Human Rights Act 1998, which requires Ministers to make a statement of compatibility. That provision was seen, when the Human Rights Bill was introduced, to serve three purposes. First, it would have the salutary effect of focusing the Government’s mind on the question of whether the proposed legislation would be compatible with the European Convention on Human Rights. Secondly, it would provide information to Members of Parliament which might be relevant to their debates and discussions. Thirdly, it might affect the judicial interpretation of any legislation that was passed.

The third purpose was soon negatived when the Law Lords sitting in this House made it clear that it was for the courts and not a Minister to say whether the legislation would be compatible with the convention. The second does not seem to have been borne out in practice, as I cannot recall any case where the significance or otherwise of the Minister’s statement has been debated in this House. That may be because it has no legal significance. I hope that the first salutary purpose is still there, and that these statements, which appear without fail in every Bill, are not a mere formality because the matter has been considered.

So the question is: what is the purpose of the requirement in Clause 19? It cannot bind the courts, as it is for them and not the Minister to say whether the provision would be environmental law, should that issue ever arise in legal proceedings. I can see some prospect of its having the salutary effect of requiring the Government to address the question, focused on in Clause 19(3), of whether the level of environmental protection provided by existing environmental law would be reduced. That would be a good thing and very welcome, but do we need a provision in this Bill for that to happen? What would happen if, as it turns out, the statement the Minister made was wrong, if the Bill is amended in a way that might affect what the Minister said or if the Minister is unable to make the statement? The clause does not address these issues at all.

If, on the other hand, the making of a statement of the kind referred to in Clause 19(4) is to provide an opportunity for debate, what purpose would that debate have if the Government nevertheless wish the House to proceed with the Bill and will enforce their wish? The clause does not provide for any kind of sanction or remedy. It can be said that there is some value in drawing the matter to the attention of the House, but does it really add anything to what would be likely to happen anyway when the Bill came under scrutiny?

There is one other point worth mentioning. The phrase “existing environmental law” is defined in Clause 19(8), in relation to a statement under the clause, as meaning

“environmental law existing at the time that the Bill … is introduced into the House”.

However, that definition does not say what it is or where it is to be found. For that purpose, one has to go to Clause 45. The very broad definition that this clause provides is

“any legislative provision … that … is mainly concerned with environmental protection”—

which, for this purpose, includes devolved legislative provisions as well.

This is quite a package. It is unlike Section 19 of the Human Rights Act, where the convention itself and its precisely grouped surrounding case law is the point of reference. Given the extensive legislative background against which the Bill is likely to have been drafted, it may be quite difficult for a Minister to make such a statement with any conviction that everything has been turned over correctly and would stand up to scrutiny. That is why it might be wiser, to avoid any misunderstanding and any potential mishaps due to the difficulty of searching the ever-expanding reach of legislation in this field, to make it clear that the purpose of the clause is limited to what is indicated in my amendment.

In any event, it would be helpful if the Minister were to make it clear, for the assistance of all those to whose functions it is directed, what exactly the purpose is of this clause. I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to support Amendment 81A, which I have co-signed. I support entirely the comments made by the noble and learned Lord, Lord Hope of Craighead, in moving it.

I want to raise a very narrow point with my noble friend the Minister. It relates to the second part of Clause 19(8). Subsection (8) states:

“‘Existing environmental law’, in relation to a statement under this section, means environmental law existing at the time that the Bill to which the statement relates is introduced into the House in question, whether or not the environmental law is in force.”


This posed quite a question at the time of the withdrawal Act and the subsequent statutory instruments on retained EU law, particularly as the water framework directive was being considered and revised. Unfortunately, we had an empty-chair policy at the time, so were not at the council meetings when this was discussed, but it begs the question of which water framework directive, for example, is now enshrined in UK law. Is it the one that we previously agreed to or is it the one that was subsequently revised at the time of our departure from the European Union?

The second and last question that I have for my noble friend the Minister relates to a jolly good read which I commend to him: the 22nd and final report of the European Union Committee, Beyond Brexit: Food, Environment, Energy and Health. It was adopted by the European Union Sub-Committee, on which I was privileged to serve. In paragraph 148, the report sets out that the trade and co-operation agreement

“negotiated by the Government will affect the policy choices available to devolved administrations and legislatures in areas of devolved competence including the environment.”

That perhaps relates more to the previous amendment, Amendment 80A, but also to the amendment before us now.

The report goes on:

“There are already diverging environment and climate change goals across the UK, which could indicate challenges ahead. We urge the Government to address any concerns raised by the devolved administrations regarding the TCA’s environment and climate change provisions—via the Common Frameworks programme or other routes—as fully and promptly as possible.”


Scotland has now set up its equivalent to the office for environmental protection, the name of which escapes me completely—I think it is Environment Services Scotland—so it has an operation that is already up and running. We will not have ours in place until July. Have any issues already arisen in this regard, as we are slightly later in our programme than we would have hoped to be? Also, have any of these issues been identified and raised under the common frameworks programme? That is in addition to my earlier question about, for example, the water framework directive.

With those few remarks, I am delighted to lend my support to Amendment 81A.

United Kingdom Internal Market Bill

Debate between Baroness McIntosh of Pickering and Lord Hope of Craighead

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 28th October 2020 Lords Chamber

[Lord Hope of Craighead (CB) [V]]

My Lords, I am in sympathy with the words just uttered by the noble Lord, Lord Young of Cookham, but I wish to speak to my own amendment, Amendment 36, and I am grateful to the noble Baroness, Lady Finlay, for her support.

My amendment is concerned with the meaning of words and, to some extent, achieving compatibility, as far as possible, with devolution legislation. It is directed to the definition of the expression “legitimate aim” in Clause 8(6), which sets out two aims, one of which is

“(a) the protection of the life or health of humans, animals or plants”.

If the draftsman of the Bill was to look at Part 1 of Schedule 5 to the Scotland Act 1998, under heading C5 he would find similar words set out in one of the exceptions to the reserved powers; that is, exceptions which mean that the things described are within the devolved competences of the Scottish Parliament. It refers to the

“protection of animal products, plants and plant products for the purposes of protecting human, animal or plant health, animal welfare or the environment.”

My point is that what one finds in subsection (6)(a) takes part of what is found in that provision but misses out some other important words. The phrase I quoted from the Scotland Act draws a distinction between animal health and animal welfare. There is some basis for that distinction because there are things that are designed to achieve the welfare of animals that are not directly related to their state of health. So there is some force in considering the addition of “animal welfare” to the formula in that provision. It also refers to the environment, and nowadays, thinking of all the concerns we have about the environment, I would have thought one could, without damaging the purposes of the Bill, include the words “protection of the environment” within the formula of the clause.

These are drafting points. I draw them, if the Minister will forgive me, more to the attention of the Bill team and the draftsman of the Bill to see whether he can find room for including words in my amendment. It is to make sure that they cover what I take to be the broad aim of the language; it is the kind of discussion we might have had, had we been given time, around a table, discussing how those particular provisions should be framed.

I am not trying to damage the Bill or adjust it in any more significant way; I just want to see that the language used covers the aim of the provision fully and completely. It is on that basis that I brought forward this amendment.

[Baroness McIntosh of Pickering (Con) [V]]

I am grateful for the opportunity to speak in this interesting debate on these particular amendments, many of which I support. I will limit my remarks to Amendment 37 in my name; I am grateful to the noble Baroness, Lady Bowles of Berkhamsted, for her support in co-signing.

The purpose of Amendment 37 is to bring the definition of “legitimate aim” set out in this clause in line with the source of EU law as contained in articles 34 to 36 of the Treaty on the Functioning of the European Union. In particular, I refer to article 36 of that treaty, which states:

“The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified”


on the grounds I set out in my little Amendment 37. It goes on to say:

“Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.”


For reasons similar to those set out by the noble and learned Lord, Lord Hope, in speaking to his Amendment 36, I think that it will be helpful to have

“public morality, public policy … the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property”

brought into Clause 8. This would be a drafting improvement, so I also make a plea to the drafting team in that regard.

I listened with great interest to what the noble and learned Lord, Lord Hope, said on adding the regulation of animal welfare. It goes to his point in a debate earlier this week on the link between this Bill and the Agriculture Bill, particularly regarding the marketing standards covered by Clause 39 of the Agriculture Bill. It would help enormously if we could have some seamless references across different Bills—in this case, the Agriculture Bill and the Bill before us this evening, the UK Internal Market Bill.

With those few remarks, I am grateful to have my noble friend consider favourably Amendment 37.

United Kingdom Internal Market Bill

Debate between Baroness McIntosh of Pickering and Lord Hope of Craighead

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 26th October 2020 Lords Chamber

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I support Amendments 1 and 2, to which I have lent my name; they are probing amendments to ask the Government a number of questions. The concept of the internal market in European Union terms is relatively recent: we have only had the single market since 1992. Of course, devolution followed some five years later, so both are still relatively new in terms of the British constitution.

British competition rules are loosely based on—and generally have always reflected—the original competition rules of the EU treaty on state aid in Articles 85, 86 and 92. The noble Baroness, Lady Hayter, has been right to highlight that, in what we have been used to in terms of both EU competition rules and British competition law as applied by the CMA, what is missing in the Bill is a reference to consumers. The flip side of competition policy to make sure that companies behave well is to ensure fair competition as well as protection of the consumer. I wonder whether leaving out any reference to consumers, both here and in later parts of the Bill, was deliberate. Why is there is no specific reference to consumers in the Bill, as Amendments 1 and 112 would provide?

 

Equally, Amendment 1 relates to safeguarding and the environment. That begs another question. We are told that our current regulations setting out food safety can always be changed by secondary legislation and that we do not need an Act of Parliament to do so. But that could lead to the situation—particularly if it remains devolved, and the Government have repeatedly stated that this is their intention—where we have to ask: to what extent will divergence be tolerated? For example, if the Food Standards Agency of England made substantial changes to our food safety requirements, would Food Standards Scotland simply diverge and not necessarily follow those changes? In future, could a product produced in Scotland, meeting Scottish environmental and animal welfare standards—I will be supporting the forthcoming amendments regarding those—still be allowed to be imported into England if it no longer met those same standards? This seems to be an obvious potential crisis for Scottish, Northern Irish and Welsh farmers some way down the road. The Government might want to rethink their idea of not having UK-wide standards. I would be most grateful if, when summing up, my noble friend could turn his attention to that potential conflict and the potential for divergence.

Turning to proportionality and subsidiarity, I absolutely agree with Amendment 2, to which I have lent my name, and later amendments. The Bill must clearly set out only what is necessary to achieve its stated objectives. My noble friend will probably answer that this is self-evident, but it bears repetition. Personally, I see some merit in having it on the face of the Bill. The principle of subsidiarity might seem clear now, but I ask my noble friend to consider the horrific situation, some five or 10 years down the road, when we may face a federal Britain. What impact would that have on subsidiarity?

On procurement, does my noble friend share my concern that despite all the potential benefits around procurement provisions that I envisage us enjoying by leaving the European Union—for example, we would no longer be bound by the threshold of €136,000, beyond which any public contract must be put out for tender, meaning that we could source many more of our English, Scottish, Welsh and Northern Irish foods into public institutions such as schools, hospitals, prisons and others—we have completely lost that advantage because through the Trade Bill we are joining the Agreement on Government Procurement, which, surprisingly, has exactly the same threshold of $135,000? We seem to be jumping out of the frying pan and into the fire, without getting all the opportunities that were promised to our farmers by leaving the European Union, such as sourcing more local food to schools, hospitals and other public institutions. That will in fact not come about, because we will be bound by international rules on public procurement. Have the Government done a cost-benefit analysis on how much competition we will face from other providers to source their foods into our public institutions, as opposed to the potential benefits our farmers might have from tendering in other international jurisdictions to source our home-produced food there?

I look forward to hearing my noble friend’s reply to this little debate.

[Lord Hope of Craighead (CB) [V]]

My Lords, I want to add a few words in support of Amendment 2. Proportionality and subsidiarity are part of the language of EU law which, while relatively new in historical terms, we are now very familiar with. It would be a mistake to think that as we reach the end of the transition period, we should leave these concepts behind. Proportionality, after all, is deeply embedded in our own public law, and has been for decades. It has long since been recognised that black-letter law alone is not a good guide to the way in which public law and public affairs should be administered. One simple example can be found in the civil litigation rules, where the word appears to make it clear that the courts should seek to obtain a just result with appropriate speed and expense in giving effect to the rules that are set out in the document. The point is that individual facts and circumstances vary greatly across the spectrum. Proportionality allows them to be taken into account and avoids blunt decisions where a greater need is to fit the facts together with the rule to find a suitable result that will achieve the desired object.

Subsidiarity too is now deeply ingrained in our constitutional arrangements. It is part of the thinking behind devolution, and the word is used with reference not only to Wales, Northern Ireland and Scotland but to devolution throughout England. The great advantage of this is that local decisions are best taken with regard for local circumstances. For them to be taken centrally sometimes misses the point and leads to solutions that are inappropriate given the local circumstances. It is a useful tool best used in the administration of our affairs to make sure that things are properly organised across the whole of our United Kingdom, which, after all, is what our new internal market is all about.

Both these principles are sound and appropriate guides as to how the two basic principles which are set out in Clause 1 should be administered. I support the argument that, somehow, these principles should find a place in the Bill. Quite how that is done I leave to the draftsmen, but Amendment 2 is at least an important start to make sure that the significance and relevance of these principles are appropriately recognised.

Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019

Debate between Baroness McIntosh of Pickering and Lord Hope of Craighead

Tuesday 29th January 2019 Grand Committee

[Baroness McIntosh of Pickering (Con)]

My Lords, I rise to ask a question and I am grateful to my noble and learned friend Lord Keen for setting the scene. A theme seems to be developing in relation to practitioners and the recognition of court judgments with the Government’s proposed exit from the European Union. My noble friend has responded to some of my concerns as regards practitioners and trading in legal services, which I hope to address in the context of the Trade Bill.

My specific concerns relate to the remarks of my noble and learned friend and what is set out on page 5 of the Explanatory Memorandum, which sets out a number of the deficiencies that will arise if we crash out without a deal. I presume that this falls into the same category that services and the jurisdictions of courts fall into with the World Trade Organization and its General Agreement on the Trade in Services. My question is similar to that of the noble Lord, Lord Beith. What will be the status of this in those circumstances? However, I have a more direct question of my own. If this is being done on the basis of reciprocity and if the instrument before us today seeks to fill the gap so that court judgments will be recognised in this country, what measures are the Government and my noble and learned friend’s department taking to ensure that reciprocity will be respected in the circumstances of Britain leaving without a deal?

[Lord Hope of Craighead (CB)]

My Lords, could the Minister say something about the effect of what is being provided for here on the common-law principle of forum non conveniens? I am sure he knows very well that the doctrine of forum non conveniens was eclipsed, as regards membership of the EU, by the reciprocity principle and the rules that apply throughout the EU.

European Union (Withdrawal) Bill

Debate between Baroness McIntosh of Pickering and Lord Hope of Craighead

Committee: 10th sitting (Hansard): House of Lords
Monday 26th March 2018 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, although we have left Clause 11, this amendment is closely related to the topics we discussed in the two previous groups. It seeks, first, to require a Minister of the Crown to lay before each House of Parliament proposals for replacing the European frameworks with UK frameworks, and it lists the particular items which are thought to be the subject matter of the frameworks that are needed. More importantly, proposed subsection (3) in the amendment seeks to provide that:

“Ministers of the Crown may create UK-wide frameworks only if they have consulted with, and secured the agreement of, the affected devolved administrations”.


So the issue of consent, perhaps more narrowly focused than in the previous discussion, is raised by this amendment as well.

The amendment was drafted some considerable time ago, when what was on offer in Clause 11 referred to the creation of these measures by Order in Council and made no mention of either consent or consultation. What we had before us, until it was withdrawn, was an amendment which reformed the machinery that Clause 11 is to provide by referring to the need to lay a draft of a statutory instrument containing the regulations under the section after consultation with the Scottish and Welsh Ministers. That is certainly a step forward, but what is sought by the amendment is one step further, which is the need for consultation.

In the discussion on Amendment 305, moved by the noble Lord, Lord Tyler, the noble and learned Lord, Lord Mackay of Clashfern, made the point that the safest way to deal with UK-wide frameworks is by primary legislation. I find it quite hard to understand how a UK-wide framework can be created by using the Section 30 power in the Scotland Act or the Section 109 power in the Government of Wales Act. Those are powers that are designed for dealing with the devolved Administrations separately, whereas the UK-wide framework of course involves the entirety of the United Kingdom, and I entirely agree with the noble and learned Lord that primary legislation would seem to be the proper way to go about it. Of course, if we are presented with primary legislation, the Sewel convention will apply and my point about consent will be satisfied simply by the machinery that has been used to create these frameworks.

We are of course dealing with something that is work in progress and we do not know quite what further discussions are going on in darkened rooms up and down the country where these matters are being debated. However, if by any chance the decision is that that has to be done by statutory instrument—I take it that this is not by Section 30 powers or Section 109 powers but by a UK statutory instrument—then the issue of consent is again raised, because the Sewel convention does not apply. I would like an assurance from the Minister that the principle behind Sewel will apply whichever mechanism is created. Of course, as I said a moment ago, the primary legislation will bring Sewel with it, but it would seem very odd if, by resorting to delegated legislation, the Government can bypass the Sewel convention. I do not believe that that is really what the Government want to do. I hope they will be prepared to say that they will be looking for consent as the mechanism which would precede the framing of any delegated legislation if it is decided to go down that road. But I stress that I agree entirely with the noble and learned Lord, Lord Mackay of Clashfern, that the proper way to create a UK-wide framework, which is what my amendment is talking about, is by primary legislation, in which case the issue of consent does not arise. I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am a cosignatory to Amendment 314 and I associate myself with the eloquent comments made by the noble and learned Lord, Lord Hope, in moving it, and, in turn, the comments made by the noble and learned Lord, Lord Mackay. In the debate at the conclusion of business last Wednesday, a number of us put this specific point to the Minister, the noble and learned Lord, Lord Keen, which could have ended the concern that certainly I still have that we should proceed, for the reasons given, by primary legislation and that it would be inappropriate to proceed by delegated legislation.

I would also like to raise the timing of the framework agreements. In summing up the debate on Wednesday, the noble and learned Lord, Lord Keen, said:

“It is the table that identifies 24 areas where it is considered there will have to be some temporary ring-fencing so that we can establish the next stage of the process for the single market—the framework agreements that will then form the basis for that single market”.—[Official Report, 21/3/18; col. 403.]


It has been very firmly expressed by the Law Society of Scotland and others that there should be a timeframe for how long this arrangement will last. I pray in aid farm policy, which I understand is one of the 24 areas that have yet to be agreed, and point out that 85% of Scottish land currently has “less favoured area” status and attracts specific European grants accordingly. I also understand that Wales receives 10% of the farm funds. There is a concern that once we come back to having only a UK single market, both Scotland and Wales will receive less in farm support. My understanding is that Scotland would like to see a framework created and the powers devolved immediately, whereas the Government wish to take control to create the framework and then devolve it subsequently. So there are very real issues in specific policy areas over the timing and content of these framework agreements.

That brings me to this question of consent that keeps coming up. The noble and learned Lord, Lord Keen, said:

“Can we just remove that dichotomy of consultation or consent?”.—[Official Report, 21/3/18; col. 404.]


The problem we face is that the devolved Administrations clearly feel that currently they have consent at three levels. One is through the Sewel convention. The second is that when EU policy is agreed at the level of the Council of Ministers normally it is the Farming Minister who attends, accompanied by the Ministers of the devolved Administrations. The third level is when the devolved Administrations, in their own devolved legislation, implement the directives in the form they think most suitable.

We are very grateful to the noble and learned Lord, Lord Mackay, for setting this out so clearly. It appears so straightforward that our starting point is that in future the UK Parliament legislates for all matters relating to the single market of the United Kingdom. As the noble and learned Lord, Lord Mackay, said on Wednesday, it would be best for this to be implemented by agreement wherever possible. We seem to be edging towards that. In response to the earlier debate, the noble Baroness responded that there is not yet agreement but we are getting close to one.

When we take our oath and are introduced here, we swear allegiance and we are told that we have a voice. My concern regarding this amendment and Amendment 318, which was debated earlier, is that the voice of the devolved legislatures will simply not be heard in that interim between the framework agreements being agreed and subsequently devolved. That is why I support this little amendment and would like to hear more about why we could not proceed along the lines that the noble and learned Lord, Lord Hope, has set out in Amendment 314.